The Second Amendment and relevant court rulings

“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”.

The Second Amendment, in all its brevity, has likely spurred the most debate and disagreement of all amendments to the U.S. Constitution.

Scott Landreth from blog.tenthamendmentcenter.com recently summarized:

The US Constitution as ratified in 1788 made no mention of the right to keep and bear arms whatsoever. The founders viewed the right to keep and bear arms as a natural right that stood as a part of English common-law for nearly a century.

It was a given!

Yet the big divide today is rooted largely in the interpretation of the prefatory clause of the amendment – the part before the notorious comma, which reads: “A well regulated militia being necessary….”.

Those who would like to see greater restrictions on access to and ownership of firearms focus on two words: “regulated” and “militia”. The issue arises when one uses modern-day usages of the word “regulated” and a lack of knowledge of the context and intent of that word as well as that of “militia”.

An in-depth discussion of the amendment’s history, origin and intended meaning is presented in the article available here.

As the article linked above demonstrates through cited references, “regulated” does not mean subject to laws, regulations and controls. It means “well-equipped”, “uniformly equipped” and “standardized”. The British Regulars (“Red Coats”) were a well-disciplined, “well-equipped”, “uniformly equipped” and “standardized” army.

A militia was understood as a volunteer force of all able-bodied males of a certain age. This relates to the use of the word “people” in the operative phrase (the part after the comma). To paraphrase one of the framers: “We are all the militia“.

Many of the colonies’ constitutions, the Federalist Papers, multiple quotes accurately attributed to the framers framers supporting individual gun ownership as well as documents tracing the evolution of the wording of the Second Amendment before it was finalized and ratified point to an individual right being the correct interpretation. This is in contradiction to the assertion that the amendment speaks to a a collective right – in the context of organized military force.

A somewhat tangential implication of this meaning is that the wording raises issues of “parity”. This idea, in simple terms, says that private individuals may (and should be able to?) own arms on par with the military standard. This invariably brings up the question whether one can own a tank or a nuclear missile. While the later is much more difficult to support historically, to say the least, it is in fact legal for ordinary bread eaters to own tanks and cannons in modern day U.S.A. There is also much evidence of private ownership (at the time of the Second Amendment’s writing) of cannons and firearms more advanced and sophisticated than muskets.

All these facts of history and linguistics and grammar were brought before the Supreme Court in the 2008 Heller case in the form of amicus curiae briefs.

The Heller case established that the Second Amendment, in fact, protects an individual right to own (“keep”) arms. The Heller decision was not a result of persuasive arguing, or deception or spinning on the part of plaintiff’s attorneys representing Dick Heller and 31 states and other organizations opposed to the D.C. gun ban. It was because they presented  a well-reasoned case supported by a plethora of historical evidence.

The 2010 McDonald v. Chicago case established that the individual right to keep arms extends beyond the Federal enclave of D.C.

There Supreme Court has not been entirely impartial in the past. The most memorable is the Miller case. The 1939 case is largely seen by gun owners as a kangaroo court set up by an anti-gun supreme court justice.

More extensive reading about these and other cases is available here.

Current events indicate that it still remains to be resolved what the “bear” part of the Second Amendment means. A number of district courts have supported individual rights to carry firearms, ruling that a state must either allow some form of open carry or issue concealed carry permits to non-prohibited persons without a “good cause” requirement or other obstacles such as extensive testing, training or sign off by local law enforcement officials. However, a similar number or lower court rulings have come down on the opposite side of the issue. It is expected that a strong test case will come before the Supreme Court in the next few years.

As many Second Amendment activists point out: “The 2nd amendment doesn’t give anyone the right to keep and bear arms, it simply prohibits the federal government from interfering with that preexisting natural right.

What remains unexplained is how, in light of Supreme Court rulings and the historical record, people can argue for a collective right to own only muskets. Or that it pertains solely to the procurement of food through hunting.

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