No ‘Individual Right’ to Bear Arms. State Regulations of Firearms Does Not Violate U.S. Constitution

This is a MUST read for any gun nut who THINKS they understand the Second Amendment and the rest of us who need to shut them the fuck up.

Judge Jeffrey S. Ryan, Breckenridge, CO, wrote the article below in response to a letter to the editor published in his local Summit Daily News, post Columbine and pre-Heller. It details undisputed law confirmed in District of Columbia v. Heller (2008) which addressed ONLY the right to own “within federal enclaves.”

SquiggleRight to Feel Safe

The Shootings at Columbine High School have understandably generated strong reactions. Inevitably, the subject of the Second Amendment has come up.

A letter to the editor published in the Summit (Colo.) Daily News by Kevin Bridges misinterprets the amendment, as well as misstating history. In fact, the media, too, are guilty of fostering confusion about the amendment, as journalists routinely refer to the “right” to keep and bear arms without consulting those charged with saying what the amendment actually means: the federal courts.

The following are facts, not opinions, and carry the force of the law.

The Second Amendment acts as a constraint on the federal government, not state or local governments. Initially, the Bill of Rights, of which the amendment is a part, applied only to the federal government. In 1868 after the Civil War, the 14th Amendment was ratified by the states. The 14th Amendment caused certain of the amendments in the Bill of Rights to be binding in the states. The Supreme Court has held that the Second Amendment was not one of these, and does not apply in the states. And since the Constitution gives the Supreme Court the Job of deciding cases involving the Bill of Rights, the court has the final word.

This means state and local governments are free to regulate possession and use of firearms without violating the federal Constitution. Arguments that a particular state gun laws goes against the Second Amendment are meaningless, because the states are not required to follow it.

What of the Second Amendment in the federal arena? Every single federal court of appeals that has addressed the issue has ruled that the amendment forbids Congress from disarming the “well-regulated” militias of the various states. (The Supreme Court has held that the modern National Guard is the militia referred to by the Constitution.) In other words, the amendment is designed to protect the right of the states to maintain militias. It has never been held to apply to the use of arms against criminals, or, more ludicrously, against the government. Most important, the courts have uniformly held that the amendment does not create or recognize a personal right to “keep and bear arms.”

Let me stress that this is not a matter of dispute in the federal courts or appeals. Each one that has considered the Second Amendment has reached the same conclusion. The Supreme Court has been asked to review many of these decisions, and has declined every time. That leaves the decisions of the courts of appeals as the final, controlling law.

It is not that the Founders didn’t consider an individual right to posses arms: Samuel Adams proposed that the Constitution contain such a right, but even he wound up voting against it. The New Hampshire delegation also offered such a proposal. It was defeated. Robert Whitehall of the Pennsylvania delegation proposed a guarantee of an individual right to bear arms. It was likewise defeated. So it is clear that the Founders could have provided for such right, but chose not to.

The Second Amendment originally contained a provision, in a final phrase, that exempted conscientious objectors from having to perform militia services. This was removed because Eldridge Gerry, a delegate from Massachusetts, feared that the government might unilaterally declare certain classes of people, e. g. Catholics, to be “scrupulous of bearing arms,” and discriminate against otherwise eligible militiamen. But such a provision further makes clear that the amendment concerned state militias, and not an individual right to possess firearms.

Bridges’ letter to the editor also states that “Hitler first required firearms registration and … authorized confiscation of all privately owned firearms.” This is not true.

The German Weapons Law of March 18, 1938, enacted by Hitler’s National Socialist government, liberalized gun ownership, as opposed to restricting it. It lowered the legal age for gun ownership from 20 to 18; extended the period a weapons permit was valid; eliminated a previous limit on the number of guns a person could own; and did away with a previous requirement of permits for long guns. While the law forbade Jews from manufacturing or selling firearms, it did not forbid them from owning firearms, contrary to popular thought. When American GIs occupied Germany, they were shocked at the number of guns that private citizens owned. Notably, all this gun ownership did not prevent the rise of Nazism or the extermination of the Jews. (An oft-cited Hitler “quote” about gun registration has been proved to be a hoax, though that has not stopped many from repeating it.)Guns Don't Kill; they just make it easier.

Without providing any proof that gun ownership was forbidden in the former Communist bloc (it certainly wasn’t in Russia), Bridges invokes those nations as proof of the perils of gun control. He fails to mention that countries such as Japan and Great Britain also have extremely strict gun control. Perhaps he considers these to be totalitarian, oppressive governments as well, but, if so, he is in a distinct minority.

The Second Amendment was primarily authorized by James Madison. It was created to satisfy the anti-Federalists, who feared dilution of states’ rights, not individual rights. Concern from the state militias was a result of fear of a federal standing army. But the Constitution not only created the mechanism for such a standing army, the newly created federal government had in fact won the argument by gaining true control over them.

Many organizations with agendas have spread inaccurate interpretations of the Second Amendment. Unfortunately, despite the very clear decisions of the courts, the press and the public have parroted these misinterpretations with no critical analysis.

If people are misinformed about the law, they will be quite disappointed when the courts rule as they inevitably must.

Most of the public is, unfortunately, ill-informed about the law and the Constitution as it is. Mindlessly parroting the phrase “the right to keep and bear arms,” with no explanation of the phrase’s true history and meaning, to say nothing of its militia context, doesn’t help.

Last, some words from people far wiser than I:

“The real purpose of the Second Amendment was to ensure that the ‘state armies’ – ‘the militia’ – would be maintained for the defense of the state. … The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” – Warren E. Burger, former chief justice of the United States.

“A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment. Our decisions belie that argument, for the Second Amendment was designed to keep alive the militia.” – William O. Douglas, former justice of the U.S. Supreme Court.

If people intend to invoke the Second Amendment, which is a matter of constitutional law, they should at least know what that law is.

Squiggle

Jeffrey S. Ryan is a Summit County judge in Breckenridge, Colo. This is reprinted from the Summit Daily News. by way of The Second Amendment Foundation without permission.

  1. #1 by brewski on April 6, 2013 - 4:59 pm

    Cliff going out of his way to advertise his ignorance and lack of education again:

    McDonald v. Chicago, 561 U.S. 3025 (2010) supersedes District of Columbia v. Heller (2008), therefore the Court held that the right of an individual to “keep and bear arms” protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.

    How’s it feel to get conclusively smacked around by me for the thousandth time?

  2. #2 by Richard Warnick on April 6, 2013 - 5:36 pm

    To drive a car in public, you must have training, a driver’s license, car registration and insurance. The same ought to be required of every firearm. That’s simple enough, but our politicians are afraid to even propose it because of the right-wing Gun Lobby yelling about “rights.” Meanwhile, truly unconstitutional laws remain on the books because there are no multimillion dollar lobbying campaigns by progressives.

    • #3 by Donabed C. Kopoian on April 13, 2013 - 3:37 am

      It is funny how any pro-2A guy will get blasted for pointing out that we should ban cars because of drunk drivers, yet, the same moron that did the yelling will turn around and say exactly what you said.

      How would registration or insurance have stopped any of the mass shootings? Name me one reason how?

      Is it a right to drive? Where is that in the constitution? Hell, was there a right to a horse?

      You just went full retard … Bro.

  3. #4 by brewski on April 6, 2013 - 6:20 pm

    “To drive a car in public, you must have training”

    False.

    • #5 by Richard Warnick on April 7, 2013 - 10:42 am

      Driver training is required in Utah.

      Before being issued a Utah driver license in the State of Utah ALL individuals who have never been licensed to drive a motor vehicle (anywhere) must complete an approved driver education course. A certificate of completion must be furnished to the examiner at the time application is made for a Utah driver license.

      • #6 by brewski on April 7, 2013 - 1:52 pm

        So basically if you were licensed in California with no training and you move to Utah, you can get a Utah license with no training. Therefore, you don’t have to have training to get a license in Utah.

        • #7 by Richard Warnick on April 7, 2013 - 2:48 pm

          We could make the same exception for firearms training, and still have better gun safety laws than now. :-)

          • #8 by brewski on April 7, 2013 - 4:53 pm

            Nevertheless, your statement was false.

  4. #9 by obama's jack booted truncheon wielding goons on April 7, 2013 - 12:44 pm

    I would expect such rubbish from the Summit Cty. paper..the reprinting of it shows the nature of the effort to distort the 2nd, and the nature of gun ownership in the US.

  5. #10 by Larry Bergan on April 7, 2013 - 6:42 pm

    Let Michael Moore educate you; one more time:

    Visit NBCNews.com for breaking news, world news, and news about the economy

  6. #11 by brewski on April 7, 2013 - 10:26 pm

    Michael Moore educating me would be like Ray Charles teaching me to drive.

  7. #12 by Larry Bergan on April 8, 2013 - 12:09 am

    I’ve heard that blind people ski.

    Conservative Sonny Bono died doing that.

    Go figure.

    Cher lives!

  8. #13 by brewski on April 8, 2013 - 8:06 am

    Blind people ski with guides.

    Mary Bono Mack lives.

  9. #14 by Jen on April 12, 2013 - 6:20 pm

    “Many organizations with agendas have spread inaccurate interpretations of the Second Amendment. Unfortunately, despite the very clear decisions of the courts, the press and the public have parroted these misinterpretations with no critical analysis”
    What organizations and what are their agendas?

  10. #15 by Jen on April 12, 2013 - 6:21 pm

    Brewski you are awesome!!!!!!!

  11. #16 by Larry Bergan on April 13, 2013 - 12:03 am

    jen/whoever:

    brewski is INDEED awesome!!!!!!!!!!!!!!

    Exclamation point!

  12. #17 by brewski on April 13, 2013 - 10:24 pm

    I tend to have that effect on smart women. That is why I am married to a professor (not one of those adjunct posers).

  13. #18 by Shane on April 14, 2013 - 11:14 am

    So are you basing your measure of “jen’s” intelligence on her seven word question or her brown nose comment? This explains much about your methid of ranking peoples intelligence…

    I guess that is an example of your “fact” based thinking rather than “feeling” based? Tells us a great deal about your marriage though, at any rate.

    I also wonder, as someone who spends so much of his time here telling us all how he has met nobel prize winners, and brilliant PhDs, and reminding us of his parents education and his wifes job, and the several times you have tried to use the fact that I teach a few classes as an insult, what was your degree again? There was a quote from a scifi author, Heinlein maybe, that said roughly “I met a lizard once who explained that he was related to a tyrannosaurus on his mothers side. I said nothing. It is my experience that people who have tell everyone how great their friends and relatives are have no accomplisgments of their own.”

    For someone who belittles posters here for suggesting that in some cases education might imply that the person has at least some idea what is going on in the world, you are amazingly concerned with with the education of those you know. You even seem to enjoy suggesting that simple typos are a sign of a poor education, while you are yourself unable to complete the most basic of critical thinking excercises. Just how conflicted do you have to be about education to defend your own ideas by pointing to the “smart people” you are related to while making fun of other people who have similar educations?

    A few moments on google searching only this site reveal hundreds of posts by you implying in one breath that educations is worthless, and the next that anyone who dares disagree with you is simply not educated enough to understand.

    …and now we know that all it takes to be a “smart woman” is to kiss your ass.

    All of this is before we even consider the psychology of someone who only posts anonymously while searching out life details of those he argues with in an attempt to use them as weapons to attempt to insult, belittle and silence them.

    The most generous assessment would be “narcissistic cowardly bully.”

    Given the mentality you display here, if I thought for a moment that your “wife” was more than a part of your invented posting personality, I would be worried that you abuse her and be concerned for her safety.

    Which I guess makes me a moron, for the same reason that “jen” is smart.

  14. #19 by brewski on April 14, 2013 - 7:32 pm

    Guess you can’t take a joke.

  15. #20 by obama's jack booted truncheon wielding goons on April 14, 2013 - 8:34 pm

    No one says less in more words than shane, all hail shane!

    Major Projection himself!

  16. #21 by brewski on April 14, 2013 - 9:56 pm

    It just pisses him off that my wife has tenure.

  17. #22 by Larry Bergan on April 14, 2013 - 10:05 pm

    brewski has a breadwinner.

    Bully.

  18. #23 by cav on April 14, 2013 - 10:11 pm

    Jen just wants brewski to mechanically thrust his noodle in n out of her spreading inaccuracy, again.

  19. #24 by Larry Bergan on April 14, 2013 - 10:54 pm

    Let’s try to keep it clean. This is a family place.

  20. #25 by Shane on April 15, 2013 - 8:03 am

    Truely a sight to behold….

  21. #26 by cav on April 15, 2013 - 8:28 am

    I take it back. I seem to have lost my sense of the serious.

    I’ll go read some Rubio and Ryan…that ought to put me right.

  22. #28 by obama's jack booted truncheon wielding goons on April 15, 2013 - 8:58 am

    Whatever anyone says, obama has inspired the sale of 65 million semi automatic weapons in less than 5 years, and I can assure you, no one but total idiots is going to easily give them up.

    The de facto reality is upon those who would attempt to control not just gun rights, but other constitutionally protected rights, that the people aren’t having it, and are armed to the teeth.

    The public of a defensive mind sees day after day what this governance does to foreigners in sovereign countries fomenting war based on lies and the rest of the disgusting spectacle, they can hardly be fooled, or much care, about the deluded opinions of those who imagine the right to guns and lethal self defense is somehow not theirs to maintain.

    This is beautiful that progressives have mounted this “3rd rail” of US politics, they can only lose, and further get more and more guns in the hands of the citizenry..Game over due to inherent delusion of those who imagin egovernment has any right in deciding how We the People mean to defend our lives, liberty, treasure and sacred honor..

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