Chapter 2 Preface
Arguments over gun control often focus on interpretations of the Second Amendment to the U.S. Constitution, which reads: “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.” Many commentators attempt to interpret the amendment’s meaning by speculating about what the Founding Fathers’ views were on private gun ownership.
Defenders of gun ownership claim that the Founders viewed privately owned guns as protection against government tyranny. They quote such notables as Thomas Jefferson, who wrote, “No free man shall ever be debarred the use of arms.” Daniel D. Polsby, writing in Reason magazine, argues that “no ambiguity at all surrounds the attitude of the constitutional generation concerning ‘the right of the people to keep and bear arms’ . . . . The Founders of the United States were what we would nowadays call gun nuts.” Polsby and others contend that individuals have a constitutional right to bear arms and maintain that gun control is therefore unconstitutional.
Not all critics agree that the Second Amendment renders gun control unconstitutional, however. Even analysts who agree that the Founders intended to protect the right of individuals to own guns contend that they might not have been against reasonable restrictions on that right. Moreover, gun control advocates point out that times have changed since the amendment’s...
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Private Gun Ownership Is Protected by the Second Amendment
The Second Amendment to the Constitution of the United States of America reads that:
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.
Gun control advocates declare that this Amendment is only a “collective right” given to the states, not individuals. Under this premise, the states could form their own militias to protect state interests without interference from the national government. In this way, the states could be a check on the national government’s power. Gun control advocates claim that the courts support their position. If the courts actually back them up, then it would seem that the gun control advocates would have this debate won. . . .
The current debate [about gun control] centers around the Framers’ use of the “Militia,” and “the people.” These two phrases appear to stick out as ambiguous and open to interpretation. Relevant court cases, and several Amendments to the Constitution are needed to properly define these terms and formulate the intent of the Amendment.
The Bill of Rights was ratified over 200 years ago. In that span of time, the meaning of many words has drastically changed. What some may consider the militia today may be far removed from the original meaning. Simply assuming that the definition hasn’t changed in over two...
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Private Gun Ownership Is Not Protected by the Second Amendment
One of the most hotly debated issues of constitutional interpretation and application is whether the Second Amendment confers rights to private citizens to own and/or bear firearms. Exhaustive research of well-settled case law answers the question, “No!”
From the middle of the 19th century to the present, a consistent line of Supreme Court and federal appellate court decisions holds that the amendment does not concern private citizens.
The Second Amendment
The Second Amendment is based on Article VI of the Articles of Confederation, which were written between 1777 and 1789. Thus, the concept antedated adoption of the U.S. Constitution.
Article VI provided that “every State shall keep a wellregulated and disciplined militia.” No provision was made for a standing federal army. Instead, Congress adopted, and the states ratified, the Second Amendment in 1791. It reads:
“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.”
In 1792, Congress passed the Uniform Militia Act, which required “every free, able-bodied, white male citizen of the respective States”—between the ages of 18 and 45—to enroll in his state’s militia.
Within two years, all 15 states had organized militias that met the congressional standards. These militias had limited success. They were somewhat useful...
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Gun Control Is Unconstitutional
In his syndicated column, Professor Garry Wills accuses the gun lobby of “bad scholarship on the Second Amendment.” Unfortunately, his own scholarship is open to question. He says the Second Amendment is only “a militia ordinance,” adding, “In all the ratifying debates on the Constitution and on the Second Amendment, the right of the individual to possess guns was not once discussed.”
Mr. Wills seems to have forgotten that the purpose of the Bill of Rights was to restrain the federal government and to reassure all those who feared that it might someday usurp as many powers as—well, as folks like Mr. Wills want it to usurp.
Security of a Free State
In the first place, a constitutional amendment is not an “ordinance,” but a principle. The Second Amendment didn’t establish state militias (which already existed). It mentions militias as “necessary to the security of a free state.” What did a “free state” need to be secure against? Well, marauding Indians, other states, and the federal government itself, if it should fall into the hands of “usurpers.”
Mr. Wills should consult his own edition of The Federalist Papers, No. 28 in particular, where Alexander Hamilton envisions the state militias mounting armed resistance to the federal government. Hamilton regards the people’s “original (i.e., natural) right of self-defense” as “paramount to every positive form of government,”...
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Gun Control Is Constitutional
For too long, our elected officials have hidden behind the phrase “our Second Amendment rights” in order to defend the status quo with regard to guns. Guns are not the root cause of violence; but their widespread usage dramatically increases the lethality of the violence. The news channels overflow with the tragedies. . . .
Clearly, these issues must be addressed. We must challenge and move beyond the mistaken belief that creating responsible gun laws in some manner offends our constitutional rights.
Misinterpretation of the Second Amendment
The Second Amendment reads, “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.” In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court discusses the purpose and the limit of the Second Amendment and tells us that the “obvious purpose” of the Amendment was “to assure the continuation and render possible the effectiveness” of our state militia forces (our present day National Guard). The right to bear arms was not extended to each and every individual, but rather was expressly limited to maintaining effective state militia.
The National Rifle Association’s (NRA) continuous omission of the “well-regulated militia” language in its literature speaks volumes. It even prompted former U.S. Supreme Court Chief Justice Warren Burger to comment:...
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