Sunday, November 22, 2015

The second amendment is about the military, not the individual

This post is the fourth part of my response on a gun control thread on Facebook. Specifically, my response to:

4. The second amendment doesn't guarantee individual rights to self defense, only those in military service can bear arms.

This falsehood is based on articles like this one in the NY Time, which says “Most federal appeals courts have said that the amendment read as a whole protects only a collective right of the states to maintain militias.” But appeals courts are not infallible.

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.

The whole controversy rests on whether the first phrase constrains the second to refer only to states' militias. Before we get into the law and history involved, let's try a little experiment. Replace the “controversial” terms with equivalent “neutral” terms and see how a reasonable person would interpret it.

A well educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.

So, in the above statement, who has the right to keep and read books? Registered voters, or the people? It is pretty clear that the first phrase merely defines the purpose for the statement, not a limitation. The Supreme court agrees. In D.C. v. Heller the majority opinion states:

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

The Bill of Rights contains two other amendments which use the phrase “the right of the people.” In both cases the phrase refers to an individual right.

Amendment 1: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Amendment 4: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Furthermore a grammatical analysis of the second amendment reveals

"The words 'A well-regulated militia, being necessary to the security of a free state,'... constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). 

The to keep and bear arms is asserted as an essential for maintaining a militia.
"The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

We can also look at the founders and framers of the Constitution to see what they said relevant to the second amendment.

George Mason said “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” (Speech in the Virginia Ratifying Convention, June 14, 1778).

Richard Henry Lee said “A militia when properly formed are in fact the people themselves… and include all men capable of bearing arms... To preserve liberty it is essential that the whole body of people always possess arms… The mind that aims at a select militia, must be influenced by a truly anti-republican principle.” (Letters From the Federal Farmer to the Republican, Letter XVIII, January 25, 1788)

Samuel Adams said “And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms...” (Debates of the Massachusetts Convention of February 6, 1788)

Thomas Jefferson wrote “False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. Laws that forbid the carrying of arms laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.… Such laws make things worse for the assaulted and better for the assailants; they act rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” (Quoting Cesare Beccaria, On Crimes and Punishment)

He also wrote “A strong body makes the mind strong. As to the species of exercise, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.” (Letter to Peter Carr, 178)

Thomas Paine wrote “The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one half the world deprived of the use of them.” (Thoughts on Defensive War, 1775)

Realize that the second amendment, while it affirms the natural right to self defense, states explicitly that the people have the right to defend themselves and their community against not only criminals, but armies, both foreign and domestic. Therefore such things as “assault weapons” bans are unconstitutional. The quotes around “assault weapons” are because the weapons banned by these laws are, according to the federal government's own definitions not assault weapons. In fact, when the federal government buys more powerful, more deadly versions of these firearms, they call them “personal defense weapons” or PDWs.

To summarize:

  • The founders of our country considered the second amendment to be an individual right.
  • A grammatical analysis of the second amendment affirms it to be referring to an individual right.
  • The Supreme Court has affirmed multiple times that the right to keep and bear arms is an individual right.


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