2nd Amendment... How long has this REALLY been applicable?

2015-05-24T22:36:25-04:00

I see people constantly quoting the Second Amendment anytime an issue comes up having to do with personally owned weapons... but did you know, that the individual did not have this right until 2008? As a nation, we have had the right to form well regulated militias. The individual person, however, has only had the right to own weapons for seven years now.

It was District of Columbia v Heller (2008) that allowed all of us to own weapons.

http://www.lawnix.com/cases/dc-heller.html

Response by SGT David T. made May 24 at 2015 11:38 PM

2015-05-24T23:38:00-04:00

The right has always been there. The Heller decision was the first decisive case that affirmed it. If we look at the founders' writings on the subject at the time there was a clear indication of a right to private ownership. The notion that the right to keep and bear arms tied to service in the militia came about in the 19th century and was inconsistent with the founders' intent.

Response by SCPO Joshua I made May 24 at 2015 11:39 PM

2015-05-24T23:39:58-04:00

Heller simply enforced a right that existed since the beginning of time and was enshrined in the Constitution at the founding of this nation.

Response by SCPO Joshua I made May 24 at 2015 11:44 PM

2015-05-24T23:44:36-04:00

One might also note that many state constitutions affirm a personal right to ownership of firearms.

Response by SSgt Private RallyPoint Member made May 24 at 2015 11:58 PM

2015-05-24T23:58:53-04:00

I am calling B.S.

Response by SSgt Private RallyPoint Member made May 25 at 2015 12:04 AM

2015-05-25T00:04:16-04:00

Does anyone really fall for any of this B.S.? This topic is a statement and not a question. The question is really a leading one and meant to perpetrate the loss of gun ownership through any means necessary.

Response by MSgt Private RallyPoint Member made May 25 at 2015 12:58 AM

2015-05-25T00:58:49-04:00

As a Native Virginian, born and raised US Citizen, and protector of our great nation, under the Constitution, we as individual Citizens have always had the right to have a means the defend ourselves against tyranny. There is a reason the Second Amendment is the Second and not the Tenth. The Second protects the First. Has been that way and God willing will remain so for the years to come.

Response by SSgt Nicholas Johnson made May 25 at 2015 1:13 AM

2015-05-25T01:13:59-04:00

Did you actually read the article you're citing? DC v Heller pertains only to the District of Columbia and you are implying that it holds some sort of relevance to the entire nation. Moreover, your assertions are completely false as well. The right for an individual's rights to bear arms has always been there--in DC as well as the rest of the country. DC v Heller simply proved that (within DC) by ruling in favor of Heller as a result of the unconstitutional laws being enforced in DC.

Response by SGT Private RallyPoint Member made May 25 at 2015 1:37 AM

2015-05-25T01:37:57-04:00

First of all the militia is any military age male capital to defend this country second well regulated means well trained if only the police and military were the only ones able to carry weapons the government would be able to enact any laws they wanted to and the people won't be able to stop them the second amendment is not for hunting or shooting but for defense against foreign countries and our own government if you give up your rights for safety you have neither

Response by SSG John Jensen made May 25 at 2015 2:05 AM

2015-05-25T02:05:48-04:00

i have frequently answered ammosexuals that since i am a retired member of the nat'l guard, that i have a right to own firearms and they don't

the other comment is that the weapon of an infantryman is a rifle, therefore you have a right to own a rifle, and you don't have a right to own a handgun unless you are an officer, and your reading skills are terrible so you don't qualify for that

Response by SCPO Joshua I made May 25 at 2015 2:59 AM

2015-05-25T02:59:15-04:00

On another note, every able bodied male between the age of 18 and 45 was made a member of the militia in 1792 anyway. That statute still stands, with minor modifications (the original said white males only, and it's since been changed to 54 vice 45 as well) - so even if the grammar fail in the op were correct about the second amendment, it would still apply to every adult male in the U.S.

He's not correct, because the "well regulated" clause of the second amendment is written such that the rest of the amendment is not contingent on it, but even if he were it wouldn't matter - to those of us men between 18 and 54 anyway.

Response by MSgt Private RallyPoint Member made May 25 at 2015 3:27 AM

2015-05-25T03:27:14-04:00

“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.”

—Second Amendment to the U.S. Constitution

Is this sentence so hard to understand? Apparently so. Even some of its defenders don’t like how it is worded because it allegedly breeds misunderstanding.

But the Second Amendment of the Bill of Rights is indeed a well-crafted sentence. By that I mean that its syntax permits only one reasonable interpretation of the authors’ meaning, namely, that the people’s individual right to be armed ought to be respected and that the resulting armed populace will be secure against tyranny, invasion, and crime. Someone completely ignorant of the eighteenth-century American political debates but familiar with the English language should be able to make out the meaning easily.

My concern is not to demonstrate that what the amendment says is good policy, only that it says what it says. No other fair reading is possible.

The Competing Interpretation

Before proceeding, let’s understand the competing interpretation. As the American Civil Liberties Union of Southern California put it, “The original intent of the Second Amendment was to protect the right of states to maintain militias.” Dennis Henigan of Handgun Control, Inc., says the amendment is “about the distribution of military power in a society between the federal government and the states. That’s all they [the Framers] were talking about.” As he put it elsewhere, “The Second Amendment guaranteed the right of the people to be armed as part of a ‘well regulated’ militia, ensuring that the arming of the state militia not depend on the whim of the central government” [emphasis added].

This interpretation is diametrically opposed to the view that says the amendment affirms the right of private individuals to have firearms. The ACLU, HCI, and others reject this, arguing that the amendment only affirms the right of the states to maintain militias or, today, the National Guard. These competing interpretations can’t both be right.

The first problem with the militia interpretation is that the amendment speaks of a right and, of course, the amendment appears in the Bill of Rights. (Powers with respect to the militia are enumerated in Articles I and II of the Constitution.) No other amendment of the original ten speaks of the States having rights. Nowhere, moreover, are rights recognized for government (which in the Framers’ view is the servant) but denied to the people (the masters). Henigan and company are in the untenable position of arguing that while the Framers used the term “the people” to mean individuals in the First (the right to assemble), Fourth (the right to be secure in persons, houses, papers, and effects), Ninth (unenumerated rights), and Tenth (reserved powers) Amendments, they suddenly used the same term to mean “the States” in the Second. That makes no sense.

More important, the diction and syntax of the amendment contradict Henigan’s argument. If the Framers meant to say that the States have a right to organize militias or that only people who are members of the militia have a right to guns, why would they say, “the right of the people to keep and bear arms shall not be infringed”? The Framers were intelligent men with a good grasp of the language. As we can see from the Tenth Amendment, they were capable of saying “States” when they meant States and “people” when they meant people. They could have said, “The right of the States to organize and arm militias shall not be infringed,” though that would have contradicted Article I, Section 8, which delegated that power to the Congress. (Roger Sherman proposed such language, but it was rejected.) Or, they could have written, “The right of members of the state militia to keep and bear arms shall not be infringed,” though that would have contradicted Article I, Section 9, which forbids the States to “keep Troops . . . in time of Peace.” They didn’t write it that way. They wrote “the people,” without qualification. (The Supreme Court said in the 1990 case U.S. v. Verdugo-Urquidez that “the people” has the same meaning—individuals—throughout the Bill of Rights.)

But, say the gun controllers, what of that opening phrase, “A well regulated militia being necessary to the security of a free state”? Here’s where we have to do some syntactical analysis. James Madison’s original draft reversed the order of the amendment: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country.” Perhaps this version makes Madison’s thought more clear. His sentence implies that the way to achieve the well-armed and well-regulated militia that is necessary to the security of a free state is to recognize the right of people to own guns. In other words, without the individual freedom to own and carry arms, there can be no militia. As to the term “well regulated,” it does not refer to government regulation. This can be seen in Federalist 29, where Alexander Hamilton wrote that a militia acquired “the degree of perfection which would entitle them to the character of a well regulated militia” by going “through military exercises and evolutions, as often as might be necessary.”

What the Syntax Tells Us

How do we know that the “well regulated militia” is defined in terms of an armed populace and not vice versa? The syntax of the sentence tells us. Madison and his colleagues in the House of Representatives chose to put the militia reference into a dependent phrase. They picked the weakest possible construction by using the participle “being” instead of writing, say, “Since a well regulated militia is necessary. . . .” Their syntax keeps the militia idea from stealing the thunder of what is to come later in the sentence. Moreover, the weak form indicates that the need for a militia was offered not as a reason (or condition) for prohibiting infringement of the stated right but rather as the reason for enumerating the right in the Bill of Rights. (It could have been left implicit in the Ninth Amendment, which affirms unenumerated rights.)

All of this indicates the highly dependent and secondary status of the phrase. Dependent on what? The main, independent clause, which emphatically and unequivocally declares that the people’s right to have guns “shall not be infringed.” (Note: the amendment presupposes the right; it doesn’t grant it.)

Let’s go at this from another direction. Imagine that a Borkian inkblot covers the words “well regulated militia.” All we have is: “A [inkblot] being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” To make an intelligent guess about the obscured words, we would have to reason from the independent clause back to the dependent phrase. We would know intuitively that the missing words must be consistent with the people having the right to keep and bear arms. In fact, anything else would be patently ridiculous. Try this: “A well-regulated professional standing army (or National Guard) being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” That sentence would bewilder any honest reader. He’d ask why such unlike elements were combined in one sentence. It makes no sense. It’s a non sequitur.

Imagine the deliberations of the Committee of Eleven, the group of House members to which Madison’s proposed bill of rights was referred. Assume that one member says, “We should have an amendment addressing the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the national government to respect the right of the States to organize and arm militias.” “No,” replies another member. “The amendment should reflect the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the government to respect the people’s right to bear arms.” If both members were told to turn their declarative sentences into the imperative form appropriate to a bill of rights, which one would have come up with the language that became the Second Amendment? The question answers itself.

The Committee of Eleven reversed the elements of Madison’s amendment. But that, of course, did not change the meaning, only the emphasis. In fact, the reversal made it a better sentence for the Bill of Rights. As adopted, the amendment begins by quickly putting on the record the most important reason for its inclusion in the Bill of Rights but without dwelling on the matter; that’s what the weak participle, “being,” accomplishes. The sentence then moves on to the main event: “the right of the people to keep and bear arms.” The Framers correctly intuited that in a Bill of Rights, the last thing the reader should have ringing in his mind’s ear is the absolute prohibition on infringement of the natural right to own guns.

I am not suggesting that the Framers said explicitly that the militia reference should go into a dependent participial phrase so that future readers would know that it takes its meaning from the independent clause. They didn’t need to do that. To be fluent in English means that one intuits the correct syntax for the occasion and purpose at hand. Much knowledge of a language is tacit. We have to assume that the Framers knew what they were saying.

What Language Experts Say

This analysis is seconded by two professional grammarians and usage experts. In 1991, author J. Neil Schulman submitted the text of the Second Amendment to A. C. Brocki, editorial coordinator of the Office of Instruction of the Los Angeles Unified School District and a former senior editor for Houghton Mifflin, and Roy Copperud, now deceased, the author of several well-regarded usage books and a member of the American Heritage Dictionary usage panel. Brocki and Copperud told Schulman that the right recognized in the amendment is unconditional and unrestricted as to who possesses it.

Asked if the amendment could be interpreted to mean that only the militia had the right, Brocki replied, “No, I can’t see that.” According to Copperud, “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.” As to the relation of the militia to the people, Schulman paraphrased Brocki as saying, “The sentence means that the people are the militia, and that the people have the right which is mentioned.” On this point, Copperud, who was sympathetic to gun control, nevertheless said, “The right to keep and bear arms is asserted as essential for maintaining the militia.”

It is also important to realize that, as a matter of logic, the opening phrase does not limit the main clause. As the legal scholar and philosopher Stephen Halbrook has argued, although part one of the amendment implies part two, it does not follow that if part one doesn’t obtain, part two is null and void. The sentence “The earth being flat, the right of the people to avoid ocean travel shall not be infringed” does not imply that if the earth is round, people may be compelled to sail. The Framers would not have implied that a right can properly be infringed; to call something a right is to say that no infringement is proper. As another philosopher and legal scholar, Roger Pilon, has written, the amendment implies that the need for a militia is a sufficient but not a necessary condition for forbidding infringement of the right to have firearms. The sentence also tells us that an armed populace is a necessary condition for a well-regulated militia.

Superfluous Commas

A word about punctuation: most reproductions of the Second Amendment contain a plethora of commas: “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.” But according to the American Law Division of the Library of Congress, this is not how the amendment was punctuated in the version adopted by Congress in 1789 and ratified by the States. That version contained only one comma, after the word state which, by the way, was not uppercased in the original, indicating a generic political entity as opposed to the particular States of the Union. If the superfluous commas have confused people about the amendment’s meaning, that cause of confusion is now removed.

One need not resort to historical materials to interpret the Second Amendment, because it is all there in the text. Nevertheless, it is appropriate to point out that history supports, and in no way contradicts, that reading. Gun ownership was ubiquitous in eighteenth-century America, and the Founding Fathers repeatedly acknowledged the importance of an armed citizenry. They also stated over and over that the militia is, as George Mason, the acknowledged father of the Bill of Rights, put it, “the whole people.” Madison himself, in Federalist 46, sought to assuage the fears of the American people during the ratification debate by noting that an abusive standing army “would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands.” That would have comprised the entire free adult male population at the time. There’s no question that at the center of the American people’s tacit ideology was the principle that, ultimately, they could not delegate the right of self-defense to anyone else and thus they were responsible for their own safety.

Perhaps the deterioration of American education is illustrated by the high correlation between the number of years a person has attended school and his inability to understand the words “the right of the people to keep and bear arms shall not be infringed.” It is more likely, though, that those who interpret the Second Amendment to preclude an individual right to own guns are driven by their political agenda. Whichever the case, they do themselves no credit when they tell us that a simple, elegant sentence means the opposite of what it clearly says.

Sheldon Richman February 1, 1998

Response by Sgt Aaron Kennedy, MS made May 25 at 2015 7:34 AM

2015-05-25T07:34:57-04:00

First, the Constitution doesn't grant Rights. It grants Protections to said Rights.

Second, the Articles of Confederacy get into this topic pretty deeply. That predates the Constitution.

Third, we have actual Legislation (enacted by Congress) previous to the Heller decision, which affirms said Protections.

Fourth, if the statement you made was true, why are there several hundred million firearms in civilian hands? Are you saying that the federal government has been misinterpreting the Constitution for over 200 years?

Response by SSG Private RallyPoint Member made May 25 at 2015 9:09 AM

2015-05-25T09:09:23-04:00

It took this long to get it before the Supreme Court, in a 8/1 vote made all rights individual rights.
The Constitution has been and should always be individual rights.

Response by SPC Jan Allbright, M.Sc., R.S. made May 25 at 2015 10:00 AM

2015-05-25T10:00:27-04:00

Interesting how back in the late 1800's you routinely disarmed yourself when entering a town like Tombstone, Deadwood, Dodge and Wichita ("Leave Your Revolvers At Police Headquarters, and Get a Check")

Response by SrA Daniel Hunter made May 25 at 2015 10:33 AM

2015-05-25T10:33:36-04:00

DC v Heller was about the extent to which the 2nd Amendment applied. Since DC is not a State but a District and therefore has no Militia it was thought, by the District, that the 2nd Amendment did not apply in the District.

The flaw in their reasoning is the Bill of Rights is a abridgment against government power. It is not a delineation of rights assumed. DC is a Federal District as such it does not have a militia, it is who is barred from preventing "...the people, to keep and bare arms.." James Madison, who authored the Bill of Rights, also authored The Federalist Papers (see No. 46); he used the Virginia Declaration of Rights as a model for the Bill of Rights (see Section 13).

Response by PO1 Jason Taylor made May 25 at 2015 11:00 AM

2015-05-25T11:00:31-04:00

Forever, the world is no safer now then it was then!

Response by SSG Paul Setterholm made May 25 at 2015 11:33 AM

2015-05-25T11:33:46-04:00

Remember when the Nra was about responsible gun ownership?

Response by Cpl Dennis F. made May 25 at 2015 12:26 PM

2015-05-25T12:26:01-04:00

What total and utter bullshit!
Is this nonsensical thinking the result of our deteriorating education system that has no desire to teach history, or much else for that matter. I am stunned to read such crap here!

Response by PO3 Private RallyPoint Member made May 25 at 2015 1:21 PM

2015-05-25T13:21:41-04:00

I couldn't get past how historically incorrect the topic statement is. We have always had the right to own personal weapons...the second amendment was in place since the bill of rights was formed. This has been applicable since our nation was founded because our founding fathers knew how easily a democratic republic can fall into tyranny, just like any other form of government. The second amendment was put in place to protect citizens of this nation from the government itself. Its the reason we swear allegiance to the constitution first and foremost. Our nation is not the government, its the people.

Response by COL Ted Mc made May 25 at 2015 1:36 PM

2015-05-25T13:36:20-04:00

Do you want to have some fun?

Acknowledge that everyone should have a gun AND then insist that they be "well regulated".

That would mean "Trained and drilled".

That would mean "Training and drilling".

And all that would be as was the "Original Intent" of the "Founding Fathers" - WITHOUT PAY since it is every citizen's civic duty to defend their country.

So, ANYONE would be able to purchase a gun, but the first thing they would have to do upon receipt of the weapon would be to head off for 8 weeks of basic training.

Response by PO1 Matthew Hotard made May 25 at 2015 2:34 PM

2015-05-25T14:34:58-04:00

When the constitution as written the term militia was use to describe and man or boy who was old enough to handle a weapon and fight. There was not a separate unit that was paid and was used to defend a town against attack. The local citizens were organized under a person who had formal military training to defend the town. That was the militia so you argument is not completely valid. The Supreme Court just validated a 232 year old idea.

Response by 1LT Aaron Barr made Oct 14 at 2015 2:15 PM

2015-10-14T14:15:31-04:00

Wrong on two counts. Firstly, what is a militia but a collection of individuals coming together for a common purpose? And where else in the Constitution does the phrase 'the People' mean anything but?
Second, if you're going to make the 'militia' argument, it might've behooved you to actually know what the legal definition of the militia actually is. In relief of your ignorance, the legal definition follows:
10 U.S. CODE § 311 - MILITIA: COMPOSITION AND CLASSES
(a)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.
(b)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 Naval Militia.

Based on subsection a, combined with later court rulings and laws barring discrimination based on physical disability, age and gender, the unorganized militia is ANY citizen of the minimum legal age to buy firearms and not legally barred from doing so for reasons such as a felony conviction etc. Second, according to the Supreme Court’s District of Columba v. Heller decision, the 2nd Amendment does apply to individuals, regardless of being in an organized militia or otherwise.

Response by Cpl Mark McMiller made Oct 17 at 2015 4:50 AM

2015-10-17T04:50:44-04:00

No. You're wrong. We have always had the right to own and carry firearms for self defense. The Second Amendment doesn't give us the right; it merely tells our government that it shall not infringe on that right. Despite the 2nd Amendment, over the decades, federal, state, and local governments have infringed on that right. In Heller v. DC, SCOTUS clarified, for all the dumb asses, that the right is, and has always been, an individual right to own and carry firearms.

Response by SSG Gerhard S. made Oct 17 at 2015 9:10 AM

2015-10-17T09:10:13-04:00

Simply not so. Heller ONLY applied to residents of Washington DC whose right to keep and bear arms were infringed by a 1970' law. The framers of our Constitution understood the people's right to keep and bear arms as inalienable. That means our rights preexisted our government, and to hammer the idea home they included the 2 nd amendment in the bill i of rights to ensure that right in particular would NOT be infringed upon by those in government, or by an activated militia. The right of the PEOPLE to keep and bear arms was explicitly recognized to protect our liberties FROM the (organized) militia, which the framers saw as necessary to the security of a free State.

So, we have the two separate, and distinct clauses of the second amendment. The first, recognizing a militia is necessary to the security of a free State... That is, to repel an invasion of the STATE ... And the second clause... The right of the people to keep and bear arms shall not be infringed. To allow for self defense, provide for the table, AND to protect the PEOPLE from a tyrannical government and its organized militia.

How anyone can claim that Heller "gave" Americans in general the right to own firearms is beyond understanding, particularly since the decision only applied to the improperly infringed rights of those in Washington DC. And other Federal protectorates. Regards

Response by SCPO Private RallyPoint Member made Oct 17 at 2015 10:59 AM

2015-10-17T10:59:53-04:00

An incredibly unbelievable question and statement of legitimacy by this RP member. It certainly takes all kinds...

Response by Capt Richard I P. made Oct 18 at 2015 12:08 AM

2015-10-18T00:08:14-04:00

I'm just going to leave this here:
https://www.rallypoint.com/answers/does-the-second-amendment-need-to-be-amended

Does the Second Amendment need to be Amended? | RallyPoint

There's been a lot of debate about firearms and firearm ownership recently. I've been a part of a lot of it. I think one thing that is achingly necessary is some close reading of the Second Amendment itself. I slapped together a powerpoint for my sister a few years ago on the topic, and will post the text here with the title slide as an image (because it outlines the argument.) 2. Inherent Right to Self DefenseAll persons entitled to defend...

Response by 1SG Private RallyPoint Member made Oct 18 at 2015 10:39 AM

2015-10-18T10:39:56-04:00

The idea that Heller is the origin of private firearms ownership right is the US is pretty shortsighted. Control of firearms in private hands didn't come about in the US until the 1930s with the violence that came out of Prohibition. Note that that violence was a result of government restriction of property rights--the possession, manufacture, and sale of certain beverages--so the government caused the problem, and then tried to solve it with new prohibition restricting property rights on firearms.

Perhaps the distinction that needs to be made is that we need to recognize that neither the Constitution nor government gives us our rights. We believe, or are supposed to believe, in Natural Rights--rights that all people have simply because they exist in the natural world--those who are so inclined ascribe these to God. But the point is that the origin of the right is being a person. The Second Amendment (nor any other Amendment) doesn't grant us a right--it only limits the government's authority in regard to our exercise of a right we already had.

Response by MSgt Gayle Litton Jr. made Oct 21 at 2015 3:42 AM

2015-10-21T03:42:47-04:00

This had nothing to do with the nation as a whole, but Washington D.C. You're comment is basically invalid and VERY uninformed.

Response by MAJ Private RallyPoint Member made Oct 23 at 2015 2:43 PM

2015-10-23T14:43:11-04:00

The 2nd Amendment always insured the right of individual ownership of weapons. District of Columbia v Heller simply affirmed that we have that right and that DC was violating it.

Response by LCDR Private RallyPoint Member made Jun 29 at 2016 1:32 AM

2016-06-29T01:32:44-04:00

You took an oath to support and defend the Constitution. You may want to consider reading it.