Interpreting the 2nd Amendment

In last week’s advisory, I responded to a number of emails from members of the Patriot Privacy and Security Society who had written to comment on my “Carrying a Concealed Handgun” advisory.

This week, I received many more emails about guns and the Second Amendment. All the emails raised important issues we will discuss over time, but I planned on waiting at least a few weeks before digging into the Second Amendment again.

But I can’t wait.

There is one email that I feel I must share and discuss separately from all the rest and I didn’t want to wait until a later date.

The reason I want to address this one email right away is because it expresses much of what we often read and hear from individuals who believe the Second Amendment is being misinterpreted by many defenders of the Second Amendment.

So I am going to reprint the email in its entirety (without identifying the author other than by initials), exactly as I received it so the author’s original emphasis is included. Following the email, I will respond in a way that I suggest all folks who believe the Second Amendment grants a modern right to keep and bear arms should respond when confronted with similar arguments.

Here’s the email I received:

—

Rob,

I read with interest the comments about guns you emailed.  I do not own a gun, but I respect the 2nd amendment as it is written in just ONE complete sentence of only 27 words.  I am not a lawyer, but as one who understands English, and possesses common sense, I would insist that the first 13 of those words on such a basic subject must be included.  I continue to marvel at the interpretation of thislittle Amendment by the NRA, whose only interest in guns, let’s face it, is in selling as many as possible.

We always hear only HALF of the second Amendment quoted “…the right of the people to keep and bear Arms, shall not be infringed.” Written English requires it rational to consider the context in which the “right to bear arms” has life.  How can we ignore the first part of the Amendment, when it actually creates the conditions in which the “right to bear Arms” is allowed to exist?

A STRICT reading of the Amendment would certainly require some connection with “A well regulated Militia” as it relates to the “security of a free State” and an understanding of the word “arms” to the people to whom the Amendment related. Do you detect anything about personal use, or self-protection as some sort of Constitutional Right? As a matter of historical fact, “arms” (basically muskets) were a necessary part of society for food and as a “Militia” which the government could not afford. There was a time when adult males were required to be ready with their “arms” to fulfill the duties of a non-existent army against the countries foes. Get it?

The bottom line for anyone who really wants to interpret the 2nd Amendment, is that any conditions other than some connection to “a well regulated Militia, beingnecessary to a free State” (Italics mine) would seem to restrict, if not to eliminate, the “right to bear arms.”

Fortunately for those “law-abiding” citizens who enjoy using guns recreationally, the USA has allowed them exemption from any well-regulated Militia or security of a free State requirements clearly quoted in the 2nd Amendment.

I hear the screams of all those who think they should augment law-enforcement or think they are really important in “protecting” themselves and the rest of us from the crazies or criminals amongst us. Some even think they are some force (against?) the Government or the Army in protecting our civil liberties or someone they decide is a dictator or sufficiently a threat to our Democracy; even the obvious silliness of protection against foreign powers. How naive can that be?

One of the comments you published mentioned the “replete” situations in which a presence of a private “lawful gun” prevented further harm. I’d like to hear of a few of them in my lifetime (86 yrs). And measure them against the MANY DAILY gun deaths in the USA, compared to the RARITY in all other (not third world) countries which either prohibit or at least control private ownership of guns.

The only way we are to be eternally vigilant against an instant, unexpected event, like the darkened theatre shooting recently, or the sudden appearance in your bedroom of an armed criminal, is to allow EVERYONE to almost literally have his finger on the trigger of a gun at all times. Precisely what the NRA would like. And not any restriction on what type of gun – a 22 or an AK 47, or how about a bazooka or propelled grenade.

Aren’t they “arms”? The writers of the 2nd Amendment were talking about muskets!  Are they equal? I believe that an overwhelming majority of gun owners in our country would draw the line before we got into heavy-duty military weaponry. I invite you to picture the horror of each “law-abiding” citizen carrying his AK 47 or maybe only a little .22 into that darkened theatre when the insane shooting began. The dead would have been in the hundreds with everyone blazing away at what they “thought” was the original shooter. Is that the ideal way for society to protect itself?

So what’s the rational compromise? Let “law-abiding citizens” have recreational guns, after adequate checks to also look into their “legal” past or any medical or mental histories suspect of any predilections toward violence. While it is only realistic to know that there will be law-breakers who enable other law-breakers to get guns, IT SHOULD BE MADE AS HARD AS POSSIBLE, to do so. And the background checks more strict, punishing the dealers and gun shows which ignore them. Many of the recent shootings could have been prevented by these restrictions. The guns for private use (still useful for “self protection”) must be limited as to magazine size and caliber, lest we become victims of the circumstances of mass hysteria or macho personalities deciding whom they can shoot. These decisions should be left to law enforcement bodies.  If you think that’s too weak a response to lawlessness, you must again look to the countries that follow it to compare the incredible difference in gun-caused deaths.

Why cannot we exercise good common sense and stop screaming about our “2nd Amendment rights”. Be careful, or the true meaning of the 2nd Amendment may be actually put into effect. Those “absolutists” of it MUST abide by the ABSOLUTE, and complete sentence.

By the way, as an example of the meanings or present use of Constitutional Amendments– has anyone discussed the quartering of Army personnel in your home lately?  Check the 3rd Amendment — that’s about the same length as the 2nd and bears no relation to our times, but meant something to the writers of it.

Signed,

LS

—

Ok, that’s the letter in its entirety. We’ve all read and heard similar arguments. In fact, there are probably other members of the society who agree with the author – at least part of what he/she wrote.

Now, I promised a response.

My response is the same response I use with friends and associates who express the same beliefs that LS wrote in his email: Read District of Columbia v. Heller.

Yes, it really is that simple.

Read District of Columbia v. Heller, the Supreme Court’s 2008 decision that addresses most of what LS and others raise as arguments against Americans’ right to bear arms in a modern society.

Read it and read it with an open mind. Because if you do, you’ll find that the Court (with some additional explanation, these points are taken directly from the opinion’s syllabus) ruled:

*The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense.

*The Amendment’s prefatory clause (A well regulated Militia, being necessary to the security of a free State,) announces a purpose, but does not limit or expand the scope of the second part (the right of the people to keep and bear Arms, shall not be infringed.), the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

*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.

*The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.

*The Second Amendment does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

Now, it should be noted that the Heller decision did not specifically grant the right to concealed carry as that specific issue was not before the Court and has not yet come before the Court. Heller was limited to the right to keep weapons in the home.

However, Heller does address most of the common arguments made by those, like LS, who believe the Second Amendment only applied to military uses and only applied to weapons used in the 1700s.

Both of those arguments are wrong.

But the main point I want to make today is that if we are going to discuss what the Second Amendment “means,” we all have to start at the same point. And that point is the Supreme Court’s decision in Heller.

So, arm yourself for future discussions with friends about the Second Amendment by reading what Justice Scalia had to say in District of Columbia v. Heller and, in the weeks to come, let’s discuss other aspects of this most fundamental right.

As always, let me know what you think. Write me at [email protected]

Be safe and secure,

Rob Douglas