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The 2nd Amendment to the United States Constitution

Defend Your 2nd Amendment Rights!

Gun journalists have a saying: The Second Amendment protects the First. The full text of the 2nd Amendment of the Constitution, abbreviated as 2A, is, "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." Much political hay is made over the meaning of these 27 words, their placement and even the punctuation. (Sterbenz)



A BRIEF HISTORY 

The Revolutionary War in the US was fought over King George's refusal to let the colonies have a say in how they were governed. Taxes certainly were a reason for the war, but far from the only one. Records from that time show gun control was high on the list of grievances. 

"As British troops sailed to Boston in 1768, the Boston Gazette reported that the ministry commanded things 'more grievous to the people, than any thing hitherto made known' the first of which was 'that the inhabitants of this Province are to be disarmed.' By 1774, the British were routinely conducting warrantless searches and seizures of firearms in the Boston area, leading the Gazette to exclaim that 'what most irritated the people next to seizing their arms and ammunition' was the arrest of patriot political leaders. King George III ordered the seizure of any firearms imported into the colonies," reports the Washington Post. (Holbrook)

David Kopel makes a compelling argument that gun control was as important as taxes to the colonies. A gun grab by the monarchy and a ban on imports of guns and gunpowder, "changed a situation of political tension into a shooting war," he says. (Kopel)

However, the Declaration of Independence never directly mentions guns. This grand document speaks to securing life and happiness twice and liberty once. Listing the problems with the king, the DOI several times accuses the king of preventing the colonists from protecting themselves including from the king's mercenary troops and Native Americans. (Jefferson)



Even the first draft of the Constitution did not include gun rights. (Bill of Rights)  The Bill of Rights which includes the 2A, was added after the original document was approved. At the time, there was little argument over the content of the Bill of Rights; the debate centered on whether or not these were "natural rights" or needed to be codified specifically to prevent government overreach. "Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty," says the Bill of Rights Institute. 

A reading of the Bill of Rights shows the Founding Fathers were extremely concerned about government overreach. Looking at their letters and speeches of the time, it is also clear they intended the citizens to have the power to stop that overreach, through violence if necessary. George Mason refused to sign the original Constitution because he felt it did not have adequate safeguards and protections for the people. Mr. Mason was instrumental in the creation and eventual passage of the Bill of Rights. 

"Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia," said Mr. Mason in a speech urging the Virginia Legislature to approve the amendments. (Elliot)

THE MEANING 

Arguments over 2A's meaning almost always focus on "Militia" first and then other parts of the Amendment. Militia then and militia now are different. 

"At the time of the American Revolutionary War, militias were groups of able-bodied men who protected their towns, colonies, and eventually states. '[When the Constitution was drafted], the militia was a state-based institution,' says Jack Rakove. 'States were responsible for organizing this,'" states a report on 2A from the Constitution Center. (Willingham)

At the time, these men were not a standing army. They had homes, businesses, and jobs in their community. The National Guard comes close to what these men did, but there is still a significant gap. The Guard has regular training, depots and supply houses and uses government-issued weapons. The men of the "militia" at this time kept their guns for home defense and on standby in case they got called out to defend the community. The stereotypical old West posse comes close to being the same as the militia of the 1700s. 

Writing for Reason, Brian Doherty says, "When the Second Amendment was written, the idea that Americans had an individual right (and in some cases an obligation) to possess arms for defense of both themselves and the state was widely understood. It had roots in the rights won by the Glorious Revolution of 1688 — rights that the American Revolution was dedicated to preserving… The Founders liked militias, but they also liked an armed citizenry. To them, the two ideas were inseparable." (Doherty)

Hunting and sporting needs are never mentioned in the DOI, Constitution or any of the Founding Fathers' words in support of the Constitutional right to keep and bear arms. 

The second most common argument revolves around the word "people." Elsewhere in the Constitution and the DOI, "people" either refers to men, women and children regardless of social standing, except slaves, or men only. In this context, men are more correctly defined as law-abiding men of European descent who were born in the US, moved here before the Revolution or became naturalized citizens. Today, the most current definition of "people" connected to 2nd Amendment rights comes from the Heller decision (see below) and Justice Scalia. His opinion defined "people" as "all members of the political community, "all Americans," "citizens," "Americans," and "law-abiding citizens." Under this and the two traditional definitions, immigrants who are not citizens are not part of "people" connected to 2A rights. 

The "well regulated" phrase is another point of contention. As explained above, the idea of a highly trained military, except for officers, military academy grads and mercenaries, did not exist. Mr. Rakove said, "It didn't mean 'regulation' in the sense that we use it now, in that it's not about the regulatory state. There's been nuance there. It means the militia was in an effective shape to fight." In other words, a militiaman had an adequate supply of guns, bullets and powder. A good way of putting this is the old axiom, "Keep your powder dry." 

Another way of looking at "well regulated," is the gun owner knew how to use his firearms. He could load, shoot and clean them. Given the corrosive nature of black powder, any gun owner who did not properly care for his weapon was soon left with a pile of rust instead of a functioning gun. 

The Founding Fathers left lots of writing behind. It is clear to anyone who is willing to read those words; they intended for Americans to have, keep and be able to use firearms. Founding Father Richard Henry Lee said, "A militia when properly formed, are in fact the people themselves, and render regular troops in great measure unnecessary. The powers to form and arm the militia, to appoint their officers, and to command their services, are very important; nor ought they in a confederated republic to be lodged, solely, in any one member of the government. First, the constitution ought to secure a genuine [ ] and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia ― useless and defenseless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community is to be avoided. …To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them…." (Lee)

The James Madison Research Library has an extensive discussion of 2A and the Founding Fathers' exact words as well as explanations from respected Constitutional scholars. (LaPierre)

2nd AMENDMENT COURT CASES 

Few 2nd Amendment court cases reach the Supreme Court. The first challenge to 2A came in 1875, not long after the Civil War ended. In reality, United States v. Cruikshank was as much about racism as gun rights. (Federal Judicial Center)  The High Court used the case to hand down a ruling on 1A, 2A and 14A. The Court ruled in favor of individual gun rights. "The First and Second Amendment rights to assembly and the bearing of arms were, according to the Court’s ruling, intended only to restrict the actions of the federal government and did not apply to the states or private citizens, and the Fourteenth Amendment rights to due process and equal protection applied only to state action and again, not to the actions of individuals," says the Federal Judicial Center. The 14th Amendment says the entire Constitution applies to state governments as well as the federal government. 

Challenge two was 11 years later. The Presser v. Illinois ruling said 2A is an individual right, not a collective right. The ruling did, for the first time, address the issue of militias. "But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security," says part of the ruling. (Skelton)



Even as late as the Civil War, fighting men were still not trained to the same standards of today's military. 

"Rather than learning in training camp, Civil War regiments had to learn to fight on the battlefield. The training of regiments was lacking and consisted mainly of the manual of arms, little target practice, company and regimental drills in basic maneuvers and brigade drill and skirmishing tactics. Division drill or mock combat was a rare occurrence. Many regiments went into combat only three weeks after being organized," says Civil War Leadership, a report at Michigan State University. (Civil War Leadership)

In the first two cases, SCOTUS ruled according to the original intent of 2A. Men were expected to have firearms, keep them in good working condition and be ready to answer the call for service on short notice. 

The next 2nd Amendment court case was the United States v. Miller, a decision that upheld the National Firearms Act. (ATF)

"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon," says the decision synopsis at Cornell Law School. (Cornell)

The fourth case is United States v. Lopez. Here, SCOTUS ruled 5-4 that the federal government has no right to regulate gun carry under the Commerce Clause of the Constitution. (Britannica)

"The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with 'commerce' or any sort of economic activity," says the decision synopsis. (Oyez)

The most-cited case on 2A is the District of Columbia v. Heller. In 2008, the Court split 5-4, ruling the right to keep a handgun is not linked to militia service. Here, the High Court separates gun ownership from the original definition of militia. 

"Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to 'guarantee an individual right to possess and carry weapons in case of confrontation.' (Fam Guardian)  This reading is also in line with legal writing of the time and subsequent scholarship," says a case synopsis. (Oyez)

The Supreme Court said self-defense with a firearm is a right. 

Heller was backed up in 2010 in McDonald v. The city of Chicago. This time the Court said

"In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." (Wikipedia, Young)

The Heller decision covered Washington, D.C., a federal enclave. Some thought the ruling applied exclusively to D.C. 

Caetano v. Massachusetts, 2016, says 2A applies to all forms of "bearable arms," not just handguns. This is a critical decision as Heller and McDonald both focused on handguns and not long guns. However, the Court has so far refused to hear cases on AR-style firearms and magazine bans. (Oyez)

Get a more detailed rundown on 2nd Amendment court cases at Ammo.com

As of this writing, New York State Rifle & Pistol Association Inc. v. City of New York, New York is pending. It was argued in 2019. This case focuses on the right to take a firearm out of the house to other places. (Oyez)

A liberal or conservative shift on the High Court will bring more 2nd amendment rights cases, regardless of stare decisis. A shift to the left will bring more gun control cases. A shift to the right will bring more gun rights cases. 

PROTECTING AND DEFENDING THE 2A 

As the Founding Fathers intended, individual possession of firearms is the greatest guarantee we have of continued liberty. As the Supreme Court ruled, individual possession of firearms is the greatest guarantee of personal safety. 

Some people say the government will protect citizens and 2nd amendment rights are not necessary. Police emergency response times can take minutes, plenty of time for a criminal to kill several people and still getaway. (Halpin)  Further, the government is doing a lousy job of protecting people outside of law enforcement. "Government-sponsored, government-led, government-ordered shootings account for more than 95 percent of all gun-related deaths," writes gun journalist Ben Baker in his book "The Truth Behind Gun Control." (Baker)  "Leading the list for the past 100 years is the United States, Germany, Russia, and China. These governments have ordered the deaths of more people than any other government on the planet." That's not doing much to protect citizens. 

Consider the long list of abuses by the government starting before the United States won the Revolutionary War. For instance, in the DOI, Native Americans were called "the merciless Indian Savages." Slavery was explicitly legal in the Constitution. Here is a short list of atrocities by the US government in recent times: 

  • WWII Japanese internment camps - George Takei, the Star Trek actor, spent time in these camps. He discussed his experiences with NPR. (Lehoczky)
  • The Tuskegee Experiment - Otherwise healthy black men were injected with syphilis in this study that ran from 1932-1972. (CDC)
  • Wounded Knee II - Also called the Wounded Knee Incident to separate it from the Wounded Knee Massacre, this 1973 incident saw Native Americans rise up to protest unjust treatment by the US government. The US government broke treaty after treaty with Native Americans. President Andrew Jackson famously ignored a Supreme Court decision regarding Native American rights. (Wishart, Rosen)
  • The MOVE Bombing - In 1985, the Philadelphia Police Department bombed a home on the west side of town. Eleven people, including five children, were killed, 61 homes were destroyed and at least 250 people were left homeless. This is particularly noteworthy for the incredible lack of media attention it received at the time. (Norward)
  • Ruby Ridge - Sometimes credited with starting the current anti-government militia movement, Ruby Ridge saw federal officers shoot Randy Weaver, kill his 14-year-old son and his wife Vicki, neither of whom were under investigation or indictment, and wound another person. "In 1997, E Michael Kahoe, who had helped supervise the FBI’s response, was sentenced to 18 months in federal prison for burying documents critical of the agency’s approach to the siege ahead of the prosecution of Weaver and Harris," reports The Guardian newspaper. (Wilson)
  • Waco - Vox lays the blame for the 76 deaths at the feet of Branch Davidian leader David Koresh. Frontline says, "These serious and deplorable blunders by the ATF and the FBI smack of sloppiness and poor judgment. But a close reading of the Waco record raises deeply troubling questions about whether government officials' failure resulted merely from operational snafus or something more sinister." In 1993 then-US Attorney General Janet Reno said mistakes were made and also said, "I am accountable. The buck stops with me." Ms. Reno was never held accountable for any of the deaths at Waco. (Burton, Rosenbloom)
  • Fear of police officers - African Americans are 2.5 times more likely to killed by police officers than white people, says a report at City Lab. Other minority groups also see higher rates of police violence than whites. (Mock)

In Bad Elk v. the United States, the Supreme Court ruled citizens may fight back against an unjust or illegal arrest and may use lethal force in that defense. The best defense against a gun is another gun. (Justia)

Github has a comprehensive list of government atrocities here and on foreign soil. Not all of the incidents listed are actual atrocities and the report itself waffles between left-leaning and right-leaning propaganda. (Github)

FIGHTING TYRANNY 

What recourse do citizens have against tyranny? We have four boxes: 

1) The Soap Box - This is also known as the First Amendment. 

2) The Ballot Box - Voting can make a difference. Too many times people do not vote for whatever reason or vote for the very representatives they both complain about and say should be removed from office. (Open Secrets)

3) The Jury Box - Take it to court and let a judge decide. Eventually, matters can go to the Supreme Court, but even that is no guarantee of freedom. For years the High Court upheld slavery, segregation and denied the rights of consenting adults of different races to marry. (Oyez)

4) The Ammo Box - In writing to William Stephens Smith, Founding Father Thomas Jefferson said in part, " God forbid we should ever be 20. years without such a rebellion… And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure." (Monticello)

The Civil War was the nation's biggest internal rebellion. It is also the bloodiest conflict the US ever fought. Other rebellions receive less attention. Some of these did lead to significant changes in government. Guns were integral. (Wikipedia)

The Mises Institute takes a look at governments that waded through citizenry like a combine harvesting wheat. (Nino)  Taking away the guns was always a top priority. Unarmed people can fight back, but not very effectively. The original Liberator was made by the US in WWII and dropped over occupied territory in hopes of arming the citizens. (FP-45 Liberator)  The new Liberator is an attempt to completely thwart gun control efforts by putting the entire manufacturing process into the hands of the average citizen. Since the plans for this gun debuted, other 3-D printed gun plans were created. (Greenberg)



FINAL THOUGHTS ON THE 2nd AMENDMENT 

In more than 200 years of independent existence, the US has only been invaded with any significance once, the War of 1812. (American Battlefield Trust)  Other incursions, with Mexico responsible for most of them, were limited in scope and effort and accomplished little. The Japanese bombing of Pearl Harbor can be considered an invasion. The Land of the Rising Sun did occupy some US territories in the Pacific. Japan’s Admiral Isoroku Yamamoto probably never said it, but the apocryphal WWII quote is still accurate. The statement is, "You cannot invade mainland United States. There would be a rifle behind each blade of grass." The 2nd Amendment of the Constitution guarantees that. Those who say the US cannot be invaded ignore the realities of 9-11 terrorist attacks. 

Best-selling author Larry Corriea says in the excellent essay "A Handy Guide For Liberals Who Are Suddenly Interested in Gun Ownership", "Having just gone through a war against a tyrannical government, the Founders understood that governments can go bad, so they made sure to note our God-given right (or we’ll say naturally occurring right since a bunch of you are atheists) to keep and bear arms in order to defend ourselves. The 2nd Amendment isn’t about hunting or 'sporting purposes', it’s about having weapons that you can fight with. As an added bonus, being able to protect yourself from a tyrannical government means that you’re a lot better equipped to deal with any common criminal who decides to hurt you." (CorreiA45)

Guns freed the United States. Guns have kept it free over the past 244 years. If necessary, guns will continue to keep the nation free. The 2nd Amendment of the Constitution is necessary.

References:

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