An Analysis of the Second Amendment

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Since my apparent opposition to gun control is not shared by all of my peers (and that is acceptable and welcomed) and there seems to be some disagreement among us what the 2nd Amendment means, I would like to do my best to explain my understanding of it, while also backing up what I have to say with facts and legal findings.  I will pull from the well known online, peer edited encyclopedia known as Wikipedia, as well as from the Supreme Court’s own case index of rulings.  I welcome debate, but not name-calling, sarcasm or hot-headed responses.  As long as you don’t spam me, I will approve all comments, even those I disagree with.  This is going to be long and lengthy.  If you have patience, I will bring all of my points together.  The purpose of this post is to put all of my thoughts in a basket, so to speak, with the intention of making sense and arguing against every point people make for “gun-control”.

Let’s start with what the Second Amendment in the Constitution says.  This in itself has discrepancies since there are 2 versions of the 2nd Amendment each with punctuation and capitalization differences:

One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] and then ratified by them. I’ve boldfaced the differences.

As passed by the Congress:

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.

As ratified by the States and authenticated by Thomas Jefferson, Secretary of State.

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.  (wikipedia)

I feel some definitions are needed here:

MILITIA:   

1. There are 2 types of Militia:  Organized militia (the National Guard of the State, Territory, and District of Columbia) and Unorganized as defined by the Efficiency of Militia Bill H.R. 11654, of June 28, 1902 (also known as the Dick Act of 1902).   The unorganized militia, also defined by the Dick Act of 1902, presently consists of every able-bodied man of at least 17 and under 45 years of age who are not members of the National Guard or Naval Militia (anyone who would be eligible for a draft). Former members of the armed forces up to age 65 are also considered part of the “unorganized militia” per Sec 313 Title 32 of the US Code.  The Dick Act of 1902 cannot be repealed; to do so would violate bills of attainder and ex post facto laws which would be yet another gross violation of the U.S. Constitution and the Bill of Rights.

The current United States Code, Title 10 (Armed forces), section 311 (Militia: Composition and Classes), paragraph (a) states: “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”[39] Section 313 of Title 32 refers to persons with prior military experience. (“Sec. 313. Appointments and enlistments: age limitation (a) To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age.(b) To be eligible for appointment as an officer of the National Guard, a person must – (1) be a citizen of the United States; and(2) be at least 18 years of age and under 64.”

These persons remain members of the militia until age 64. Paragraph (b) further states, “The classes of the militia are: (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the NavalMilitia.” (wikipedia)

2. the activity of one or more citizens organized to provide defense or paramilitary service, or those engaged in such activity. The word can have five somewhat different meanings:

  • Defense activity, as well as those engaged in it, when it is defense of the public, its territory, property, and laws
  • The entire able-bodied male population of a community, town, or state, which can be called to arms against an invading enemy, to enforce the law, or to respond to a disaster
  • A private, non-government force, not necessarily directly supported or sanctioned by its government
  • An official reserve army, composed of citizen soldiers, also called an Army Reserve, National Guard, or State Defense Forces

In any of these cases, a militia is distinct from a regular army. It can serve to supplement the regular military, or it can oppose it, for example to resist a military coup. In some circumstances, the “enemies” against which a militia is mobilized are domestic political opponents of the government, such as strikers. In many cases the role, or even the existence of a militia, is controversial. For these reasons legal restrictions may be placed on the mobilization or use of militia.

Central to the complete concept of “militia” as used by the Founders was that it be “well-regulated”, which meant well-trained and well-organized, but not necessarily by government. Thus, the term would not have been properly used to refer to an armed, unruly mob, but only to persons who behave in a responsible, law-enforcing mode, and who might act to control an armed, unruly mob as an “insurrection”.  (wikia)

INFRINGE:

WEBSTERS ONLINE DICTIONARY:

1. to encroach upon in a way that violates law or the rights of another <infringe a patent>
2. obsolete:defeat, frustrate

So if we analyze the 2nd Amendment, and substitute the words for the definitions, this is what we get:

A well-trained and well-organized (but not necessarily by government) body of able-bodied men and women between the ages of 17-45 (65 if a former member of the military), being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be encroached upon.

So this seems to clarify a bit, but also appears to be more restricting.  What about men and women who are not former members of the military who are 46 and older?  Do they not also have the right to bear arms?  I will get more into that later when we discuss District of Columbia v. Heller.  Let’s look a little into colonial times, and their frame of mind.

INFLUENCE OF THE ENGLISH BILL OF RIGHTS OF 1689:
The necessity of securing a “free” state was of such importance it was placed in the 2nd Amendment.  Right after the right to freedom of speech, freedom of religion, freedom of press,freedom to peaceably assemble and the freedom to petition the government for a redress of grievances.
The right to have arms in English history is believed to have been regarded as a long-established natural right in English law, auxiliary to the natural and legally defensible rights to life.[9] The English Bill of Rights emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament and the role of Catholics in a country that was becoming ever more Protestant.
Our forefathers knew what it was like to live under a tyrannical king and government.  A government that was too involved with their lives.
One of the issues the Bill (English Bill of Rights) resolved was the authority of the King to disarm its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.
Our forefathers saw their king (prior to the English Bill of Rights) desperately try to disarm them and replace them with a permanent army.  The kings argument then was ‘why should our citizens be armed when we have a standing army?’  (Sound familiar? This is an argument I get over and over again!)
The bill states that it is acting to restore “ancient rights” trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.
The historical link between the English Bill of Rights and the Second Amendment, which both codify an EXISTING RIGHT and do not create a new one, has been acknowledged by the U.S. Supreme Court.
“This meaning is strongly confirmed by the historical background of the Second Amendment.  We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.  The very text of the Second Amendmentimplicitly recognises the pre-existance of the right ad declares that is “shall not be infringed.”  As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U.S. 542, 553 (1876), ‘[t]his is not a right granted by the Constitution.  Neither is it in any manner dependent upon that instrument for it’s existence.  The Second Amendment declares that is shall not be infringed…”. (wikipedia)
Early American Settlers viewed the right to arms and militias as extremely important for not only self defense of themselves and their families and communities, but also for deterring tyrannical government!
“Col. Charles J. Dunlap, Jr (1995) “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment“. 62 TENN. L. RE. 643. “The concept postulates that the Second Amendment was inteded to provide the means by which the people, as a last resort, could rise in armed revolt against tyrranical authorities.”
“Malcom, “That Every Man Be Armed,” pp 452, 466.  “The Second Amendment reflects traditional English attitudes toward these three diestinct, but intertwined, issues: the right of the individual to protect his life, the challenge to government of an armed citizenry, and the preference for a militia over a standing armyThe framers’ attempt to address all three in a single declarative sentence has contributed mightily to the subsequent confusion over the proper interpretation of the Second Amendment.
And just in case we were unsure of the mind frame of the day, here is a glimpse of the Pennsylvania state Constitution of 1776 (the Constitution of the United States was adopted in 1787):
the people have a right to bear arms for the defence of themselves and the state
I’m pretty sure it doesn’t say anything about hunting or target practice.
So now we see the definitions of a few key words in the Second Amendment.  We see the mind frame of the colonial times.  They were very mistrusting of an overly powerful central government.  This is why Madison set up a strong republican government with three branches that divided it’s powers.  This is why the government is of the people, for the people, by the people.
Let’s see what the Supreme Court has had to say about the Second Amendment in the most recent ruling on the Second Amendment:
D.C. v. Heller: Justice Anonin Scalia said the 2nd Amendment “protects an individual right to possess a firearm unconnected with service in the militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. …the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…”  Scalia wrote that the opinion wasn’t in conflict with bans on ownership for convicted felons or mentally ill.  It also ruled that the two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.  Justice Antonin Scalia, who authored the majority opinion, considered the amendments prefatory clause, “[a] well regulated Militia, being necessary to the security of a free State,” and determined that while this clause announces a purpose for recognizing an individual right to keep and bear arms, it does not limit the operative clause. The Court found that analogous contemporaneous provisions in state constitutions, the Second Amendment’s drafting history, and post-ratification interpretations were consistent with its interpretation of the amendment.”
“What the Heller Court describes as the general preexisting right to keep and bear arms for participation in militias, for self-defense, and for hunting is thus not strictly limited to the home environment but extends in some form to wherever those activities or needs occur, just as other AMendments apply generally to protect other individual freedoms.”
” The right of the whole people, old and young, men women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curailed, or broken in upon in the smallest degree…”   Nunn v. State, 1 Ga. 243, 251 (1846)
Overall, as found in Supreme Court rulings from 1846 through present day, it has been found the the right to bear arms is not limited to only military and militia, but to the average law-abiding citizen who cares to not only hunt but also defend himself.  The grammer and punctuation in the Second Amendment is irrelevant in comparison to the meaning and history behind it.  When other Amendments say if they are applied to the home specifically, this one does not.  When other portions of the Constitution specifically spell out limited powers, this one does not.  The Second Amend ment does, however, say that well regulated (well trained and organized) militia is imperitive to the security of a free state, and our right to bear arms SHALL NOT BE ENCROACHED UPON!! Perhaps the REAL Gun Control answer is not limiting our guns and ammunition, but to educate and train.  Perhaps instead of taking away from citizens who abide by the law, we should put more guns into those citizens’ hands.  I feel safer in my home knowing that we have firearms, and we know how to use them properly.
gun control is hitting your target

gun control is hitting your target

I’m not sure if this is as scattered as it seems.  I really just wanted to pool together different pieces that I have read.  If you have any questions or corrections, please politely inform me so I can correct any mistakes.
I’d also like to thank whoever created this image.  If you know who did, please link to them in the comments so I can give credit where credit is due.
Thank you,
The very patriotic Domestic Zombie
**side note here‘s a link to an excellent paper regarding gun control and it’s not so modern ideas**

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I have often wondered myself what the answers to questions like these would be. This is very well written and researched.

The D.C. Clothesline

Imagine you can interview the Founders. What questions would you ask them? How do you think they would respond? I did this little thought exercise and came up with the following: Today it has been my pleasure to sit down with our Founding Fathers and ask a few simple questions about their thoughts on what has become of the US and the Constitution.

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